Maine has recently made history by being the first US state to enact the Nordic Model approach to prostitution. Ten counties in Nevada, on the other hand, have legalised prostitution in registered brothels, and several other states are considering decriminalising prostitution, including sex buying, pimping and brothel keeping.
In this article we provide some background to US prostitution law and policy and we look in detail at an innovative approach taken in Washington State.
Background
In most of the United States (US), prostitution is criminalised, which means that all aspects of prostitution are illegal, including brothel-keeping, pandering (grooming or coercing someone into prostitution), pimping (profiting from, or advancing, another person’s prostitution), and both selling and purchasing sex acts.
This approach is based on the patriarchal double standard that holds women responsible for men’s sexual behaviour and sees prostitution as a consequence of female ‘immorality’. These values implicitly blame the women involved for their own exploitation and their lack of choices that make escape difficult, if not impossible. That the sex trade continues to prosper in the US suggests that its criminalised approach is ineffective.
As a federal republic, the US has federal laws that apply to the entire US, and state laws that are passed and enforced by each separate state – sometimes with further differences at the county or city level. Prostitution law and policy is a state matter and there is variation between the states. However, almost everywhere, it is a criminal offence to engage in sex acts for money or to offer to do so. In almost all states it is also a crime to buy sex acts – although traditionally this has not been enforced rigorously or at all.
Historically US law enforcement has primarily investigated and arrested the women and girls who are caught up in prostitution, while ignoring the men who pay for it. Women and girls have typically been subjected to repeated fines and terms of imprisonment. This, along with the consequent criminal records, causes them severe difficulties and makes it hard to access education, employment, loans, and even housing, effectively trapping them in prostitution as all routes out are blocked.
At the federal level, there is enlightened human trafficking legislation. The Trafficking Victims Protection Act (TVPA) of 2000 defines sex trafficking as “the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purposes of a commercial sex act, in which the commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age”. This closely mirrors the internationally agreed definition set out in the United Nations treaty, the ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children’, which is often referred to as the Palermo Protocol.
Under the federal definition of sex trafficking, any third-party involvement in the prostitution of a child is, correctly, seen as a form of human trafficking – and yet children have been targeted under state prostitution laws in many states. For example, in Los Angeles County 1,400 children, some as young as nine and most in foster care, were arrested for soliciting between 2003 and 2012.
There is an increasing awareness that this needs to change, that children do not enter prostitution of their own volition – but always as the result of grooming and manipulation – and that their traffickers are motivated by the often eye-watering financial sums that can be made. For example, a 2014 study found that, on average, pimps – almost of all of whom would meet the federal definition of sex traffickers – made between $5,000 and $32,833 a week, with many earning almost as much in a week as the average person earns in a year.
There has been progress over the past decade, with most states now having some form of safe harbour, where they identify children in prostitution as sex trafficking victims and not offenders.
Washington state
Washington state pioneered an imaginative approach to this problem. Its border with Canada and many sea ports mean that it is recognised as a human trafficking hub. In 2003, it was the first state to enact its own anti-human trafficking legislation. All of the other states have since followed suit – although the laws vary considerably state by state.
Although Washington state legislation still criminalises all parties involved in prostitution, since 2012, prosecutors and police in King Country, the most populous county in the state, have shifted law enforcement efforts away from those selling sex acts and onto the men who buy them – who ultimately fund and drive the entire industry. In 2014 in King County, for the first time ever, more charges were filed against buyers than against the women and children selling sex acts. By 2020, there were no charges against anyone – adult or child – for selling prostitution. In 2020, in spite of the disruption caused by COVID19, there were 74 felony charges related to the commercial sexual exploitation (including buying sex acts) of children and 21 of adults.
King County prioritises the prevention of child sexual exploitation and the protection of victims. No child has been charged with their own abuse within the prostitution system since 2014 – and from 1 January 2024 the law will no longer criminalise children for involvement in prostitution.
This switch from focusing law enforcement efforts on the (mainly) women and children being exploited to focusing it on the pimps and buyers came about in large part because grassroots prostitution survivors and feminists worked to raise awareness of the harms of prostitution. They helped people understand that prostitution is seldom a genuine free choice for the women and children involved but rather the result of deeply entrenched inequality, historic abuse, and lack of opportunities. They showed that prostitution causes immense harm to individuals and the community, and that for the men who buy sexual access it is a very real choice. They talked about how Sweden has shown that it is possible to change social norms around this and that men can change this behaviour.
Cross-sector collaboration was key to the success of the strategy and a working group consisting of local community organisations and government agencies (the ‘Ending Exploitation Collaborative’) was set up to coordinate the work. Of particular importance is the Organization for Prostitution Survivors (OPS), which is survivor-led and provides services, such as training for criminal justice and other workers, education in the community, and support and advocacy for survivors.
Seattle became part of the national ‘Cities Empowered Against Sexual Exploitation’ (CEASE) programme which funded an ‘ending exploitation manager’ who facilitated the work in King County and across the state. Unfortunately, that funding expired in 2021 and led to the loss of the manager. However, the work continues, although with less strategic planning.
Most prostitution in King County is facilitated through the Internet and that’s where most law enforcement investigations now start. There are hundreds of websites and thousands of ads in the Seattle area. It’s not uncommon for detectives to see 200 or 250 responses to a new ad within a couple of hours of it being posted. The buyers are overwhelmingly white (about 80%) and almost exclusively male, while the majority of those bought and sold are African American and Hispanic and mostly female.
Buying sex from an adult – now known in Seattle city as “sexual exploitation” – is a simple misdemeanour; buying sex from a child – now “commercial sexual abuse of a minor” (CSAM) – is a felony sex offense. Trafficking or pimping is also a felony offense. The criminal justice system refers women who are caught up in the prostitution system to non-profit organisations, such as OPS, that provide case management, advocacy, support, and referrals for shelters and drug rehabilitation.
One of the most innovative initiatives is the Stopping Sexual Exploitation programme – which is an intensive 10-week scheme for men. Men convicted of sexual exploitation can be mandated to attend the programme, but men can also self-refer. The programme has three key aims: to reframe sex buying from a “victimless crime” to a practice of gender-based exploitation and violence; to deconstruct “toxic masculinity”; and to support healthy alternative conceptions of masculinity. The programme involves two initial individual sessions, followed by eight three-hour group sessions.
The 2021 Program Evaluation says that 97% of the 76 men who participated in the programme responded “No” to the question, “Do you think you will buy sex again?” and 92% responded “Yes” to the question, “Do you think that women are harmed by prostitution?”
The evaluation includes a number of open-ended responses from participants which suggest that the programme touched them deeply. For example:
“I learned a lot of things about myself; how my feelings and moments in my life [contribute] to making certain decisions to buy sex. This class hit home on many levels.”
“This was a great group. We even had the opportunity to carry over an extra week and there was a unanimous decision that we wanted to have class due to the benefit we received from our leader and each other.”
“This program and information about prostitution and trafficking are not talked about, and I think it should be widely known. I believe this program has helped me in many ways.”
Stopping Sexual Exploitation: 2021 Program Evaluation – Seattle Against Slavery and Organization of Prostitution Survivors
This suggests the programme is successful in bringing about lasting change in many of the men’s behaviour.
Benjamin Gauen, the Human Trafficking Lead Prosecutor at the King County Prosecuting Attorney’s Office, is enthusiastic about the strategy.
“There’s nothing more rewarding as a prosecutor than having a defendant show up at sentencing and talk about what they’ve learned from going through the Stopping Sexual Exploitation program, and how they now realise that their behaviour was much more harmful than they imagined. They now understand that the narrative of somebody just deciding to sell sex is fundamentally flawed given the reality that most people in the sex trade are highly marginalised and vulnerable and come from backgrounds of domestic violence and child sexual abuse.
Commercial sexual exploitation is a product of systemic racism and sexism, and income inequality in our communities. Ultimately, what we’re trying to do here is to address the root causes of it, especially on the demand side. And if we can change the hearts and minds of these men, then they’re not going to do it again and they’re going to go out in the community and educate other people including their own friends and colleagues. and perhaps we’ll have a more widespread change in how we view the system of prostitution.”
Interview with Elke Kramer, researcher, 30 March 2022.
For nearly ten years, Seattle and King County have used policy to enforce an approach that is similar to the Nordic Model. It’s not the full Nordic Model because it is not mandated through legislation – those involved in prostitution are still potentially subject to criminal sanctions – and the services available to them are too few and too fragmented. However, it is a huge leap forward and it has improved things significantly for the women and children involved and has gone some way to changing public understanding of prostitution and discouraging the unrestrained growth of the sexual exploitation industry.
While the strategy applies in theory to the other counties in Washington state, a lack of resources and political will mean that it has not been as successfully implemented outside Seattle and King County. This suggests that a scheme that so radically challenges the status quo is successful only when it is fully resourced and championed at the highest levels.
Acknowledgements
With grateful thanks to Elke Kramer and Benjamin Gauen for their help with this article.